Smith v Smith
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 21 November 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J1121-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 1969 |
[1969] EWCA Civ J1121-1
In The Supreme Court of Judicature
Court of Appeal
Appeal (by leave) by the Petitioner Dorothy Smith from Order of His Honour Judge Buckee in Chambers dated 5th December, 1968.
The Master of The Rolls (Lord Denning),
Lord Justice Salmon and
Lord Justice Edmund Davies
Mr. KENNETH WILLCOCK (instructed by Messrs. Rudd Moorfoot & Davenport, Westcliff-on-Sea) appeared on behalf of the wife Petitioner Appellant.
Mr. JAMES LEGON (instructed by Messrs. E. Edwards, Son & Noice) Basildon Essex) appeared on behalf of the husband Respondent.
This case raised an interesting point on the variation of a marriage settlement. The parties married as long ago as 1945, when the husband was aged 20 and the wife was 21. They have two children who are now grown up: a daughter of 23, and a son of 20. After the marriage, the parties lived a normal married life together. Both went out to work. Roth contributed to the household expenses. In 1956 they bought a house – No. 26 Common Lane, Thundersley. The purchase price was 1,850. They found the deposit and legal fees, coming to 250, and left 1,600 on mortgage with the building society. The house was conveyed into the names of them both jointly. The conveyance contained the usual declaration that it was held on trust to sell, with power to postpone, and until sale upon trust for themselves as joint tenants.
After the purchase in 1956 the husband paid the building society instalments. But the wife continued to go out to work. Sometimes she was part-time; sometimes full-time. She also helped in the house. Her earnings were used to meet the household expenses, such as the children's clothing, and the like. It was, in short, the ordinary arrangement of husband and wife living together happily.
In October 1962 the husband left. He went to New Zealand and set up there. He left the wife in the house with the two children. He promised to pay her 8 a week. He paid it for a couple of years; but then from Easter 1964 he stopped paying anything to her without any explanation. For about a year afterwards he sent 30/- a week for the son, but then he stopped paying anything.
Since the husband left, the wife has been going out to work. She has been paying the building society instalments. She has been paying the rates and everything for the household.
Next there were divorce proceedings. In October 1967 the wife was granted a decree nisi on the ground of the husband'sdesertion. Soon afterwards the decree was made absolute. Then the wife applied to the County Court to vary the settlement of the house. She asked that the house should be entirely hers and that the husband's interest should be extinguished. The Registrar so held. But, on appeal, the Judge held that the property was to remain in the joint names as joint property; L that the wife could stay there in a way as long as she liked; but if she sold, then on the sale 500 was to go to the husband out of the proceeds. The wife appeals to this Court asking that the house should be wholly hers. Now for the value of the house. Over the last years it has increased in value. It is now worth 3,750. But there is 1,300 still owing on the mortgage. So the equity is worth 2,4540. The husband says that he is entitled to half of that equity, i.e., about 1,250. So it is at least fair, he says, that he should have 500 out of it.
It is important to remember that this is an application under section 17 of the Matrimonial Causes Act, 1965. It says that: "The Court may, after granting a decree of divorce (a) inquire into the existence of any ante-nuptial or postnuptial settlements made on the parties"; and (b) "make such orders as the Court thinks fit as respects the application, for the benefit of the children of the marriage or the parties to the marriage, of the whole or any part of the property settled." That section is far wider than section 17 of the 1882 Act. The 1882 section only enables the Court to declare the established rights of the parties, see ( Pettitt v. Pettitt 1969 2 W.L.R. 966). It gives no power to vary them. But section 17 of the 1965 Act expressly gives a power to vary rights. It applies, of course, only to "settlements", but that word has been construed so widely as to include the matrimonial home and the furniture in it in other words, all "family assets" – when they were acquired as a continuing provision for the family for the future. The Court can vary the established rights in those assets in whateverway it thinks fit. Its discretion is unlimited, see ( Egerton v. Egerton 1949 65 T.L.R. 615). It can consider the conduct of the parties; the incomes of each: their earning capacity: their financial needs: their ages: their standards of living: the contributions made by each, and not merely their financial contributions, direct or indirect, but also any contributions made (particularly by the wife) by looking after the home and caring for the children. In short, the discretion is just as wide as that which is contained in the Bill now before Parliament. That will not become law until the 1st January, 1971. But meanwhile the Courts have, by judicial decision, reached the same result.
Mr. Legon urged that we should not interfere with the way in which the Judge has exercised his discretion. But I think we should. The Judge was wrong in assuming that each was, entitled to half of the equity of 2,500, so that each should get 1,250. Such a division overlooks altogether the fact that the wife, over the last five years (whilst the house has been increasing in value) has kept up the house, paid the building society instalments, the rates, and so forth. It is entirely due to her efforts that the house has remained intact and increased in value. Assuming, however, that it was fair that each should have half (1,250) of the equity, nevertheless we should look to the future. The husband's income in New Zealand is 18 a week. She in England goes out to work and earns 8. As she gets older she may not be able to work, while he may be earning a good income still. Then look at her contribution in the past. For over 24 or 25 years she has looked after the home; she has brought up the children; she has been out to work; and she put all her contributions in. Now he has left her. Over the last five years she has done everything on her own. It seems to me that he ought not to be allowed any part of the equity of the house. She should have the whole interest in this house, but we should recognise that it would be very difficult for her to obtainanything further from him. So she should forego any claim to future maintenance, lump sum, or secured provision.
The Order of the Court will be that the settlement should be varied by extinguishing the husband's interest in the house as if he were now dead and she had survived him after his death. The whole interest will then be completely in her. A useful precedent is In re ( Poole's Settlements Trusts 1959 1 W.L.H. 651). I would, therefore, allow the appeal, order that no further applications for maintenance,...
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